Employers in California no longer can force victims of harassment or discrimination to keep quiet about those experiences.

As of Jan. 1, the “Silenced No More Act” expands state law to cover all settlement agreements regarding harassment or discrimination, closing a loophole in prior law. The new law (SB 331) bans confidentiality and non-disparagement clauses about such violations from being folded into severance agreements, building on a 2018 law (SB 1300) that banned such clauses in employment agreements. 

California lawmakers who backed the law say it’s important that hostile work environments not be protected by secrecy. The various layers of legislation were sparked by the #MeToo movement, which revealed how devastating confidentiality clauses had been in perpetuating patterns of sexually inappropriate behavior. 

In many cases, victims were required to sign non-disclosure or similar agreements in connections with settlement agreement or in exchange for a raise, bonus, or continued employment. But now, unlawful acts in the workplace can’t be swept under the rug. This doesn’t mean disclosure is necessary — it gives victims the freedom to choose whether to share their experiences.

Notably, these laws protect victims of harassment or discrimination based on more than sex — they also cover factors such as race, ethnicity, sexual orientation, age, disability, and religion. In addition, retaliation for reporting violations is prohibited. Employers also may be held responsible for harassment of workers even by non-employees if those in charge knew or should have known about the conduct but didn’t take swift corrective action.

If you’ve been the victim of harassment, discrimination, or retaliation in the workplace, don’t hesitate to seek legal advice. These violations are illegal and just plain wrong, and we are passionate about advocating for victims. 

Start with a free consultation — the experienced employment lawyers at Keller Grover can help you understand your rights, protections, and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Let us add you to that list.

As California — and the rest of the nation, for that matter — tries to figure out what to do with gig workers, a protracted legal battle has come out in favor of the little guy. At least for the moment. 

The case pits a former Grubhub driver, Raef Lawson, against the company, pursuing minimum wage, overtime and expense reimbursement claims. But the law is far from straightforward. 

A tangled web 

The state has been going back and forth about how to categorize people who take on app-based work, such as Uber drivers. In 2019, the legislature piggybacked on a California Supreme Court decision, codifying a ruling that put the burden on employers (a so-called “ABC test”) to show that someone was an independent contractor and not an employee. The idea was to stop companies from using contractor status to avoid having to offer benefits, overtime pay, and other perks or protections. 

Then, it became clear that the provisions didn’t help everyone — such as those whose careers (i.e. freelance writing) had long relied on independent contractor status. While the legislature worked to adjust the new law, California voters approved a measure (Proposition 22) that allowed app-based transportation and delivery drivers to remain as independent contractors but get some alternative benefits. (A few months ago, a state superior court ruled that the law was unconstitutional and unenforceable — we’ll see where that ends up.) 

Anyway, the text of the voter-approved measure, effective a year ago, didn’t specify that it was applicable retroactively. But the ABC test was: A January 2021 ruling by the California Supreme Court said the “ABC test applies retroactively to claims rooted in wage orders.” 

Back to the present 

All this took place while the Lawson-Grubhub case remained pending. 

Given these overlapping facts, Grubhub tried to argue that the passage of Proposition 22 meant the ABC test wasn’t applicable. The 9th U.S. Circuit Court of Appeals disagreed, sending the matter back to district court for the ABC test and consideration of Lawson’s minimum wage, overtime and expense reimbursement claims. 

What does it mean for me? 

It could mean a lot of things. If you’re happy as an independent contractor, you can stay that way. If you work in the gig economy, keep your eyes on the courts. If you had wage disputes with gig employers that date back beyond December 2020, you may have a case.

We’ll be watching the district court as it applies the ABC test, as well as whether Proposition 22 remains applicable. 

As this situation demonstrates, employment law and conflict with any type of employer can be intimidating and confusing. If your employer isn’t treating you fairly, the experienced employment lawyers at Keller Grover offer free consultations to help you understand your rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members.

Starting Jan. 1, employees who work in warehouse distribution centers will gain important new protections in the state of California. 

Targeting behemoths such as Amazon, state lawmakers passed AB 701 in the fall. The law aims to protect workers from extreme productivity quotas that lead to injuries or skipped breaks. With Amazon and its massive package-delivery workforce pressuring other retailers to follow along, California wants to clarify unacceptable practices now. 

“We cannot allow corporations to put profit over people,” Gov. Gavin Newsom said when he signed the bill. 

Here are the key points of AB 701: 

• More transparency. Employers must let workers know up front exactly what is expected. That includes providing, in writing, a description of all applicable quotas — number of tasks or materials to handle, relevant time periods, and any potential negative consequences for missing a quota. This point adds transparency to a subject that companies have guarded as proprietary. 
• More employee rights. A current — or former — employee can ask for his quotas and 90 days of his work speed data if he thinks that meeting a quota has made him miss a state-mandated break or sacrifice safety. He then could sue to block unsafe quotas and to enforce change, and potentially win costs and attorney’s fees. Also, an employee can’t be fired or punished for failing to meet an unsafe quota. 
• Active state enforcement. The Labor Commissioner — in coordination with other state agencies — can access data about workplace injuries and other details, using this to strategically analyze which warehouses may have unsafe productivity quotas and act 

based on the results. Separately, the justice system can pursue civil or criminal action against employers based on violations of the new law. 

California takes workplace safety seriously, particularly considering the vital role of warehouse employees during the pandemic. If productivity quotas at work are endangering your health, safety or workplace rights, the experienced employment lawyers at Keller Grover can help. We offer free consultations to help you understand your situation and legal options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members.

A new California law meant to help employees avoid arbitration got a partial boost from a California court, but nothing is final yet.

The law, signed late in 2019, seeks to protect workers who don’t want to sign employment agreements that force arbitration — as opposed to suing in court — if they end up at odds with their employers. Consumer advocates and others have said mandatory arbitration agreements often yield one-sided solutions, keeping secret employer wrongdoing and blocking employees from the benefits of judicial proceedings. But the U.S. Chamber of Commerce, joined by various other entities and trade associations, has taken issue with Assembly Bill 51. Businesses typically favor private arbitration as quicker and cheaper than litigation.

Indeed, The Washington Post recently reported that arbitration cases shot up 17 percent last year, and employees received money in a mere 1.6 percent of cases. In arbitration, there’s little to no option for appeals.

Here’s what you need to know about the issues involved, and what they mean for you:

Let’s start with AB 51. Basically, California lawmakers wanted to make sure that employees weren’t forced to agree to arbitration as a condition of employment. Also, the law prevents employees from threatening or retaliating against employees who won’t agree to mandatory arbitration. AB 51 gave the state Department of Fair Employment and Housing some teeth to investigate and resolve complaints, including bringing a civil action on behalf of a wronged employee if necessary. Violations would count as unlawful employment practices, subject to criminal penalties, as well.

The U.S. Chamber and others challenged the law, and the U.S. District Court for the Eastern District of California took their side, saying the Federal Arbitration Act governs mandatory arbitration agreements and is greater than any state law. The court issued a preliminary injunction to prevent enforcement of AB 51.

Then, a divided U.S. Court of Appeals for the Ninth Circuit weighed in, ruling 2-1 that there’s a distinction between laws influencing the period before an arbitration agreement happens and an existing agreement. The FAA applies to existing mandatory arbitration agreements, but not to whether they can be required, the court said. Similarly, the circuit court ruled that civil and criminal penalties for employers only can apply to actions before an agreement is made. Consensual arbitration agreements must be executed per FAA requirements.

Now, the U.S. Chamber wants a rehearing en banc, basically trying to overturn the Ninth Circuit ruling. We’re following the ups and downs of this legislation as it moves through the courts. Much is up in the air as enforcement of the law remains in limbo. But you should be aware of your rights. If your employer or a potential one is forcing you to sign a mandatory arbitration agreement as a condition of getting a job, keeping a job, career advancement, or any other benefits, there may be ways to protect yourself. The experienced employment lawyers at Keller Grover offer free consultations to help you understand your rights, protections and options. In more than 25 years litigating fraud and employment cases, we have recovered hundreds of millions of dollars for clients and class members. Contact us for a free consultation.